Chapter 1 - Origins

On September 17, 2001, six days after the terrorist attacks in New York and Washington, DC, President Bush signed a directive authorizing the CIA to set up and run secret prisons outside the United States.

Marcy Wheeler 09/26/09: I'd suggest rephrasing the description of what the 9/17/01 MON authorized. A lot of reporting (this article is one example <http://www.nytimes.com/2006/09/10/washington/10detain.html>) says the MON authorized "the capture, detention, and interrogation" of Al Qaeda figures. The distinction would be important to describe how rendition was a part of this (indeed, I expect this MON may be pitched as an expansion of existing rendition guidelines). And it's important to point out that the treatment of people like Ibn Sheikh al-Libi was an early approach to fulfilling this mandate.

Also, it would be useful to link to a detailed explanation of the National Security Act's requirements about MONs and Findings. Given that CIA did not inform Congress they were waterboarding until after they had already done a month of it with Abu Zubaydah (and it seems clear they didn't tell Congress they HAD already waterboarded when they first briefed on this), it seems important to explain the legal mandate for Congressional notification.

Secret prisons are illegal. Every nation on earth must acknowledge its prisons, account for its prisoners, and allow those it is holding to communicate that they've been imprisoned. All prisoners must have some access to legal process. The International Committee of the Red Cross must be permitted to visit them and monitor the conditions of their imprisonment.

Seizing someone and delivering him to a secret facility where he is held incommunicado and unacknowledged is "enforced disappearance," a gross human rights violation associated with infamous, brutal regimes.1 The laws against it are as absolute as those banning torture and cruel, inhuman, and degrading treatment, and the two crimes are closely linked. Invisible prisoners are abused prisoners, as a rule. But it is more than that: the uncertainty and fear disappearance engenders, not just in those who are disappeared but also in their families and communities, is itself considered a form of cruelty.2

Tens of thousands of pages of government documents and public reports, books, and articles now testify to the torture and cruel, inhuman, and degrading treatment of detainees that began in the CIA's “black sites” and spread through acknowledged and unacknowledged prisons in Guantánamo Bay, Afghanistan, and Iraq. Much of the most direct evidence remains secret, however. Videotapes of interrogations have been destroyed. Material still being withheld or redacted includes photographs, descriptions of the destroyed videotapes, real time cable traffic between interrogators and senior officials in Washington, and direct testimonies by victims of torture and abuse.

Still secret, too, is the document that first opened the space for torture and mistreatment to happen. In Freedom of Information Act proceedings, the CIA originally argued that the activities President Bush's September 17, 2001 directive authorized were so sensitive the agency couldn't even acknowledge that the document existed.3 But President Bush himself eventually disclosed the CIA's Rendition, Detention, and Interrogation Program. In a speech on September 6, 2006, he revealed that the agency had been holding “a small number of suspected terrorist leaders and operatives” in secret sites overseas, and had been interrogating them with “an alternative set of procedures.” After being held for as long as four and a half years, the President announced, the last 14 of these CIA detainees had been transferred into military custody in Guantánamo.4

“Item 61,” as the presidential directive is known in ongoing Freedom of Information Act (FOIA) litigation, is one of some 2,000 documents the CIA was still withholding when President Obama officially ended the Rendition, Detention, and Interrogation Program in January 2009. It includes a 12-page “notification memorandum” from the President to the National Security Council establishing the program, plus a 2-page “transmittal memorandum” from the NSC to CIA Director George Tenet with instructions on implementing the program and the list of those who had seen the document. CIA attorneys have argued that the level of classification of the document is so exceptional that even the font is classified.5

Since January, more of these 2,000 documents have been released, most notably the report summarizing the results of an investigation by the CIA's own Office of the Inspector General into the abuse of CIA detainees under the Rendition, Detention, and Interrogation program. That May 2004 OIG report depicts an agency struggling to implement a presidential order that put it on the wrong side of the law from the start:

The conduct of detention and interrogation activities presented new challenges for the CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al-Qa'ida personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance . . . . All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated U.S. policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community. 6

Released in heavily redacted form in August 2009, the report summarizes the results of the Inspector General's investigation into the deaths of two detainees in CIA custody, allegations of the use of “unauthorized interrogation techniques” on CIA detainees, and information the Inspector General's office had received “that some employees were concerned that certain covert Agency activities at an overseas detention and interrogation site might involve violations of human rights.”7

Alex Abdo, ACLU, 9/24/09: The CIA OIG report's revelations that interrogators used unauthorized techniques -- like mock executions and threats on the lives of detainees -- is particularly surprising given the excruciating level of senior oversight of the CIA's &quot;enhanced interrogation&quot; program. There are clearly two narratives at play and few answers about their interplay. On the one hand, senior-level officials have tried to wash their hands of the clear excesses of the CIA's interrogation program by pointing to the OLC memos. On the other, CIA interrogators have pleaded "good faith" reliance on legal advice that they clearly ignored at times.

As it reviews specific incidents of torture, the report reveals the extent to which CIA interrogators in the black sites communicated their intentions and actions to their superiors in Washington, and their anxiety over the legality of their actions.8 “During the course of this Review, a number of Agency officers expressed unsolicited concern about the possibility of recrimination or legal action resulting from their participation,” the Inspector General reported. “One officer expressed concern that one day, Agency officers will wind up on some “wanted list” to appear before the World Court for war crimes stemming from activities [redacted].” 9

David Frakt 09/27/09: This statements reveals the ignorance of CIA Agents about international law. First of all, the correct name for the so-called "World Court" is the International Court of Justice. This court, in the Hague, resolves only legal disputes between nations (and provides advisory opinions to organs of the U.N.) and has no jurisdiction over individuals for war crimes. If the officers were referring to the International Criminal Court, the U.S. is not a party to the Rome Statute (President Clinton signed the statute, but President Bush unsigned it) and does not accept that the ICC has jurisdiction over U.S. citizens. Even if the Obama Administration were to sign on to the Rome Statue again, a move it is reportedly considering, and get the statute ratified by the Senate, it would not be retroactive.

Former Vice President Dick Cheney recently called the appointment of a Special Prosecutor to investigate the incidents reviewed in the Inspector General 2004 report “an outrageous political act” and “an intensely partisan, politicized look back at the prior administration.”10 But CIA agents foresaw such an investigation early on, regardless of the political climate:

A number of Agency officers of various grade levels who are involved with detention and interrogation activities are concerned that they may at some future dates be vulnerable to legal action in the United States or abroad that the U.S. Government will not stand behind them. Although the current detention and interrogation Program has been subject to DoJ legal review and Administration political approval, it diverges sharply from previous Agency policy and practice, rules that govern interrogations by U.S. military and law enforcement officers, statements of U.S. policy by the Department of State, and public statements by very senior U.S. officials, including the President, as well as the policies expressed by Members of Congress, other Western governments, international organizations, and human rights groups. In addition, some Agency officers are aware of interrogation activities that were outside the scope of written DoJ opinion. Officers are concerned that future public revelation of the CTC Program is inevitable and will seriously damage Agency officers' personal reputations, as well as the reputation and effectiveness of the Agency itself.11

As they carried out September 17, 2001 presidential directive, CIA agents were left to wrestle with one of the fundamental problems enforced disappearance poses: the question of what the agency itself called the “endgame.” What happens to those who have been treated in a way that undermines any possibility of reintroducing them into the legal system for prosecution and who, “if not kept in isolation, would likely divulge information about the circumstances of their detention”?12 By May 2004 it was clear to the Inspector General that the CIA was trapped in the directive. “The Agency faces potentially serious long-term political and legal challenges as a result of the CTC Detention and Interrogation Program, particularly its use of [Enhanced Interrogation Techniques] and the inability of the U.S. Government to decide what it will ultimately do with terrorists detained by the Agency,” he concluded.13

The U.S. government now acknowledges it held “fewer than 100 people” for up to five years in CIA black sites.14 As President Bush announced, 14 of these men were transferred to Guantánamo in 2006. These were not, as President Bush declared, the last of the black site detainees, however; 2 more CIA prisoners were moved to Guantánamo the following year. Where the rest of those who disappeared into the Rendition, Detention, and Interrogation program are today is not clear. The government can point to many who are now in prisons in other countries, but several, it says, are missing or “lost.”15

The day before President Bush signed the September 17, 2001 directive, then-Vice President Cheney told a national audience on Meet the Press that the United States, in responding to the September 11 terrorist attacks, would have to work “the dark side,” insisting “it's going to be vital for us to use any means at our disposal, basically, to achieve our objectives.” The day after issuing the secret order, the President signed the Authorization for Use of Military Force in Response to the 9/11 Attacks, a Congressional joint resolution that had passed on a 98-0 vote in the Senate and a 420-1 vote in the House of Representatives. The resolution authorized the President

to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.16

As expansive as that language is – so expansive the administration would claim it conferred the power to conduct the National Security Agency's illegal Terrorist Surveillance Program – it was narrower than the administration wanted. Its proposed language would have authorized the President “to deter and pre-empt any future acts of terrorism or aggression” regardless of whether the targets had any connection to the September 11 attacks.17 Moments before the Senate vote, the White House tried to insert an additional phrase that would have permitted military and covert actions inside the United States.18

When Congress passed a version that specifically rejected these proposals, the administration responded in a way that would become a hallmark of its antiterrorism efforts: it asked its lawyers to argue around the legal restrictions. A week after the Congressional resolution was signed into law, John Yoo, Deputy Assistant Attorney General in the Justice Department's Office of Legal Counsel, issued a secret memorandum asserting that the President had the power to take pre-emptive action against terrorists or States that harbor them, whether or not they were linked to 9/11. Yoo followed this a month later with a secret memorandum insisting that the President had the authority to use military force within the United States.19

At the time, few outside the administration knew that it was plotting an antiterrorism strategy that recognized almost no legal restrictions, and no one outside a handful of “special access” senior administration officials knew that its plans specifically included enforced disappearance and abusive interrogations.

Nevertheless, the international community was sufficiently alarmed by what the phrase “all necessary and appropriate force” might entail and what administration rhetoric might be signaling that it felt compelled to remind the United States of its international obligations. On September 27, 2001, a delegation from the International Committee of the Red Cross met with State Department officials.20 Two weeks later, the United Nations Committee Against Torture issued this statement:

Although mindful of the terrible threat to civilised society of international terrorism, the Committee against Torture reminds State parties of the non-derogable nature of most of the obligations undertaken by them in ratifying the Convention against Torture.

The obligations contained in Articles 2 21 and 15 22 and must be observed in all circumstances.

The Committee against Torture is confident that whatever responses to the threat of international terrorism are adopted by State parties, such responses will be in conformity with the obligations undertaken by them in ratifying the Convention against Torture.23

Matthew Alexander 9/25/09: Although some have argued that the crimes of torture and abuse, ghosting of detainees, and extraordinary rendition must be viewed within the context of the dark days after 9/11, I submit that there is no such language in any public oath of office. All oaths of office for U.S. public service require adherence to American law and principles at all times.

As horrific as 9/11 is in everyone's memory, it is a fundamental aspect of leadership to be able to separate one's emotions from one's professional duty. As General George C. Marshal said, "Once an Army is involved in war, there is a beast in every fighting man which begins tugging at its chains ... a good officer must learn early on how to keep the beast under control both in his men and in himself."

Our leaders failed to keep that 'beast' under control and, in failing to do so, became the very enemy we were fighting against. I believe these policies rise to a level above incompetence because they violated U.S. and international law. In that context, they can only be classified as crimes.

Footnotes

1. The United States signed but has not ratified the International Convention for the Protection of All Persons from Enforced Disappearance, and the Bush administration tried between 2003 and 2006 to renegotiate the scope of its prohibitions to shield CIA agents from prosecution under the treaty. R. Jeffrey Smith, "U.S. Tried to Soften Treaty on Detainees," Washington Post,Sept. 9, 2009 (citing State Department documents secured by Amnesty International under the Freedom of Information Act). Regardless, enforced disappearance is barred under a variety of international human rights and humanitarian laws defining minimum due process rights.

2. For example, in 1994, the United Nations Commission on Human Rights, reviewing the case of a Libyan man who had been effectively “disappeared” by Libyan secret police and held in secret for three years, found that his prolonged incommunicado detention in an unknown location constituted torture and cruel and inhuman treatment ( El-Megreisi v. Libyan Arab Jamahiriya , Communication No. 440/1990, U.N. Doc. CCPR/C/50/D/440/1990 (1994). Likewise, the InterAmerican Court on Human Rights has ruled that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being.” ( Velásquez Rodríguez Fairen Garbi and Solis Corrales and Godinez Cruz Cases (Provisional Measures ), Inter-American Court of Human Rights (IACrtHR), Jan. 19, 1988

6. OIG Report, “Counterterrorism Detention and Interrogation Activities, September 2001 – October 2003 (CIA Office of the Inspector General Special Review, May 7, 2004), 3. The report notes that the CIA had “intermittent involvement” with interrogations up through the Vietnam War, and had developed a Human Resource Exploitation (“HRE”) program to train interrogators in Latin American countries in the 1980s. That program was terminated in 1986 “because of allegations of human rights abuses in Latin America,” and the agency had since avoided any role in interrogations. The CIA had no organizational background or experience in running detention facilities.

8. The CIA is now withholding many of these communications, which include cables between the black sites and CIA headquarters and consultations between the CIA and the Justice Department's Office of Legal Counsel, partly on the grounds that the exchanges concern “the prospect of criminal, civil, or administrative litigation against the CIA and CIA personnel who participated in the program” and are thus privileged. Decl. of Wendy M. Hilton ¶ XX, Am. Civil Liberties Union v. Dep't of Def. , No. 1:04-CV-4151 (AKH) (S.D.N.Y. Aug. 31, 2009). “As subsequent events have shown” Ms. Hilton notes, “this anticipation was not unwarranted.”

16. Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40, 115 Stat. 224 (2001))

17. This original language could have been construed to authorize military action against Iraq, for example.

18. Congressional Research Service Report for Congress, “Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): “Legislative History”; Tom Daschle, Power We Didn't Grant , Wash. Post , Dec. 23, 2005

19. John Yoo, “The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” September 25, 2001, and “Authority for Use of Military Force To Combat Terrorist Activities Within the United States, October 23, 2001

21. Article 2 states: 1. Each State Party shall take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

22. Article 15 states: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

23. Letter from the High Commissioner for Human Rights, 11 October 2001

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It is clear that the only accountability we will ever get in the U.S. is from efforts like yours in documenting the record of our increasingly fascist government----replace der Fuhrer with Commander-in-Chief, what is the essential legal difference when the President and the "unitary executive" are above and beyond the law? Keep up the good work!!!! ONLY an aroused citizenry will compel any accountability and justice for these crimes against humanity.

If the Constitution is ever to be fully restored, and if the government officials who acted as if they are above the law are ever to be held accountable for their crimes, it will be because of a resource such as The Torture Report. We simply cannot give these lawless "tough-on-crime" (except their own, of course) thugs a free pass. We do not want this ever to happen again. Thanks for what you are doing. The nation will forever be in your debt.

So, do you guys care about the torture of innocent American citizens ("targeted individuals") with directed energy weapons and acoustic weapons that's happening even now, under Obama? Or is this site all about a partisan attack on an unpopular President?

Larry - I heard you on On the Media today (10-03-09). Your work is vital. Please keep up your investigations. Exposing what the Bush administration did and prosecuting senior officials to the fullest extent of the law are the only way that the US will re-claim its moral standing.

A terrific start to a vital endeavor! One big suggestion though:
It is crucial to note that Bush/Cheney did not introduce torture into the US experience. 'No touch' tortures authorized for CIA drawn from SERE were adopted by the agency and US military decades earlier in Vietnam, Latin America, and elsewhere. A history of the KUBARK manual and School of the America's material should be referenced. Let's not also forget the general weakness of US torture law-- namely various 'reservations' to the CAT and the odd thresholds for “severe mental pain or suffering” set in US code 2340. Perhaps there should be a chapter incorporating the bulk of this info? Some books that deal heavily with this material include the seminal, 'The Search for the "Manchurian Candidate"' by John Marks, 'A Question of Torture' by Alfred McCoy, and 'American Torture' by Michael Otterman. [Full disclosure: I am Michael Otterman!].

Obviously 9/11 prompted the administration to abandon legal restraints against torture. However, this seems clearly to have been motivated not by pure hatred or vengeance, but by the idea that torture was necessary to defend the U.S. I couldn't find anything in Chapter 1 addressing this motivation or the assumptions behind it. Mr. Cheney in recent months has argued that the administration properly concluded that torture would elicit valuable, useful information. Subsequent disclosures don't seem to confirm either that torture performed that function, or that there was, or is, credible evidence that torture will work in that way. In the early days, what facts or claims did the administration rely upon in determining that existing prohibitions against torture should be disregarded? #Additionally, why did the administration find it necessary to "argue around" the restrictions if the administration believed it was obvious that the circumstances necessitated disregarding them? #Mr. Cheney's position seems grounded on the moral rule of self-defense -- and the related rule of defense of others who are unable to defend themselves -- against unjustified attack or threat. Was this ever expressly argued? In other words, was there ever a coherent argument that the existing ban on torture needed exceptions to fit circumstances like those in the wake of 9/11, analogous to common law self-defense and defense of others? #I believe in 2003 the administration stopped torturing detainees. Why was this done? Did the change reflect a re-thinking of the grounds relied upon at the outset for disregarding the law? #Finally, although this may be beyond the scope of the inquiry, I wonder if the agencies involved in the latest arrests for terroristic plotting, which allegedly have thwarted attacks on New York City subways or other vulnerable infrastructure, have been monitored with regard to adherence to the anti-torture laws?

I am aware of facts that counterdict the notion that officials acted out of a sense of panic or emergency after 9-11. Various officials had different subjective experiences, but in arguing on both 9/11 and early morning of 9/12 for application of the Quarles "public safety exception" to the Miranda Rule so as to be able to attempt an interview of Moussaoui, I and other FBI agents in the Minneapolis Division were told they no longer considered it an "emergency". I had argued that there might be more planes in the air and/or plots to hijack planes.
Soon after 9-11 when the "Patriot Act" was being drafted, I called to FBI Headquarters as well as to some of the legislators' staffers about the need for perhaps putting the Quarles "public safety exception" into statute form to make it easier and clearer for agents to apply in such life and death emergencies--what later came to be called the "ticking time bomb" situation. The Quarles suggestion was ignored even as talk of "going to the dark side" and "taking off the gloves" began in October 2001 vis a vis the 1000 detained immigrants in New York City who weren't talking (because none turned out to be terrorists).
I documented the problem just days after 9-11 in a file memorandum. I also included the issue in footnote 8 of my memo to FBI Director in May, 2002 in connection with the Joint Intelligence Committees' Inquiry (http://www.time.com/time/covers/1101020603/memo.html). I also testified to the Judiciary Committee two weeks later (June 6, 2002) about the need to consider whether such life and death emergencies might require application of the Quarles "Public Safety Exception" to Miranda.
A month after I testified to the Judiciary, in July 2002, I attempted to contact Michael Chertoff who was a Deputy Attorney General about the fact that no one had ever attempted to interview Moussaoui, who was one of the only Al Qaeda members we had in custody since even before 9-11. I mentioned we might be forgoing a lot of information and intelligence that could uncover further terrorists or terrorist plots. An assistant for Chertoff brushed me off.
I think, in fact, that the decision not to even attempt an interview of Moussaoui that entire time period came at a cost. Moussaoui might have known shoe-bomber Richard Reid, for instance, who was narrowly thwarted in an attempt to blow up a jet in December 2002.
http://www.huffingtonpost.com/coleen-rowley/justifying-torture-two-bi_b_...http://www.historycommons.org/searchResults.jsp?searchtext=coleen+rowley...

Very good questions. We’ll definitely be looking closely at many of these in future chapters, especially the administration’s legal reasoning and the questions of whether, when, and why the administration backed away from abusive interrogations. Some of the Justice Department’s Office of Legal Counsel memos do make the (very creative) argument that interrogators who use torture could raise self-defense as a shield against prosecution; we’ll address these OLC memos in detail. I think the story, once it’s all told, will not support the notion that torture ended in 2003. For example, the OLC issued three memos justifying torture in 2005 (available at http://www.aclu.org/accountability/olc.html), and documents obtained from the Defense Department’s Criminal Investigation Division concern the abuse of prisoners in DoD custody in 2004 (see http://www.aclu.org/safefree/torture/37818prs20081119.html). In terms of motivation, I take it as a given that many in the administration believed torture was necessary to detect and interrupt planned terrorist attacks. But many others in the State Department, Department of Defense, FBI, and CIA, sharing the same motivation, disagreed with that conclusion. The idea that torture is necessary to head off serious existential threat is not new; almost all regimes that have tortured have pointed to a need to interrupt real or perceived plots against its people or the state.

This is all so scary and similar to so many other countries who have gross violations of human rights. What is difference between the United States policy regarding the treatment of terrorists and how Saddam Hussein treated those who opposed him? Very little it seems... Forced disappearances, torture, denial and cover up are all the hall marks of a government that has gone out of control and that scoundrels have taken over.
Thank you ACLU for this wonderful site and for sharing the information in way that easily accessable to the general public. Keep up the good work!

This is a great start. Can the documents in the footnotes be hyperlinked? Even the footnotes that contain an "available at" URL address do not seem to have a hyperlink connection. Some of the news articles might be hyperlinked as well. While these source documents speak for themselves, it might be increasingly of interest to be able to look at footnote documents when they are the primary source docs--such as the actual government records produced in response to FOIA litigation.

Thank you for creating and hosting this invaluable resource.
Two requests, of the type shared by the first commentator. In future posts, could you provide dates and sources for passages such as "Former Vice President Dick Cheney recently called the appointment of a Special Prosecutor to investigate the incidents reviewed in the Inspector General 2004 report “an outrageous political act” and “an intensely partisan, politicized look back at the prior administration.” I imagine that this resource will be available, relevant, and useful for quite some time, and references to "recent" quotes might confuse future reader.
Secondly, for whatever reason, the formatting of annotations is getting mangled: "is particularly surprising given the excruciating level of senior oversight of the CIA's "enhanced interrogation" program"
Again, thanks for all the work that the ACLU has done in documenting America's detention and interrogation policies during the War on Terror.

Done, and done. We've added a footnote with a link to the remarks, and I'll do this now throughout; we also fixed the formatting of the annotations. Thanks, and thanks to all for your help as we iron out the kinks!